Interim Order 45

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF DEEPALI SHARMA
SPECIAL JUDGE: PC ACT: ACB-01:
ROUSE AVENUE COURT COMPLEX: NEW DELHI
CNR No. DLCT11-000201-2021
CC No. 26/2021
FIR No. 50/2007
PS : ACB
State Vs Raj Kumar & Ors.
14.11.2024
ORDER ON CHARGE
1. Briefly stated, prosecution case is that on
28.11.2007, the complainant Varun Rana came to ACB and made
his complaint in the presence of RO Insp. Heera Lal and panch
witness Sh. Sanjay Kumar stating that he was a lawyer practicing
at Rohini Court. He alleged that on 28.11.2007, he went to
Ahlmad Raj Kumar of court room no. 115, Rohini Court in
connection with Traffic Challan no. 834586 of one Sunil. The
challan was dated 08.11.2007 in respect of vehicle no.
DL-8SAL-0643 for driving without helmet regarding which he
was asked to appear before the court on 26.11.2007. The
complainant had come to deposit the challan at which Ahlmad
Raj Kumar told him that if he presented the challan before the
court, then at least Rs.600/- would be spent and if he disposed
the challan at his end, he will have to pay Rs.200/- for RC of the
vehicle. The challan will then not remain pending. Raj Kumar
also told him that if the complainant had other such challans,
then they can be disposed off in half the challan amount. At this
the complainant gave three traffic challans of Mohd. Aslam,
Poonam Gupta and Lalit Gupta to Ahlmad Raj Kumar who told
the complainant that he would dispose them for Rs.2,000/-.
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2. The complainant also handed over Rs.2,000/- to
RO Insp. Heera Lal in the presence of panch witness. The RO
noted down the serial numbers of the currency notes i.e. four
notes of denomination of Rs.500/-. Pre-raid proceedings were
conducted and phenolphthalein powder was also applied on those
currency notes and the said notes were kept by the complainant
in front pocket of his shirt during the said proceedings.
3. Subsequently raid was conducted at Court no. 115,
1st Floor, Rohini Court complex at the room of Ahlmad. Ahlmad
Raj Kumar was caught red-handed with the bribe amount of
Rs.2,000/- i.e. four phenolphthalein powder smeared currency
notes of Rs.500/- denomination. Upon taking his hand-wash, the
sodium carbonate solution turned pink. The exhibits were seized
and kept in sealed condition.
4. Upon search of accused Raj Kumar, 33 challans
were recovered from left pocket of his wearing pant, out of
which 32 were traffic challan and one was STA challan. The
said challans were recovered alongwith other documents and
from the right pocket of his pant, Rs.18,910/- were recovered.
All the aforesaid were seized by the IO. The exhibits were got
deposited by the IO in the Malkhana.
5. Disclosure statement of accused Raj Kumar was
recorded wherein he stated that he alongwith his associates i.e.
two Naib Court Mannu and Rajesh, STA Naib Court Naresh and
peon Sunil, used to illegally dispose off the traffic challans
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without presenting them before the Ld. MM, by taking half the
challan amount. They used to return the seized documents
alongwith the challan to the violator.
6. Subsequently accused Naresh Kumar and Sunil
were arrested. Further investigation was assigned to Insp. M.C.
Meena who took the specimen handwriting of accused Raj
Kumar and the posting details of the accused officials. He
recorded the statements of the witnesses U/s 161 Cr.P.C. The
Institution Register of the court in issue was also produced by the
concerned Ahlmad and the Summary Trial Register was
produced by the Reader of the concerned court. However, the
register of Summary Trial did not contain the details of the 24
challans which were recovered from accused Raj Kumar. The
FSL result was obtained indicating that the exhibits were found
to contain phenolphthalein and sodium carbonate.
7. During investigation IO recorded the statement of
one Kamal Kishore U/s 161 Cr.P.C. who
inter alia stated that Ct.
Rajesh Kumar had taken Rs.2,000/- and returned the original RC
of his employer Ram Babu after taking it out from the court
register. The photocopy of the said RC was seized by the IO.
8. During investigation IO recorded the statement of
one Subhash U/s 161 Cr.P.C. who
inter alia stated that peon
Sunil had taken Rs.600/- and returned his original driving license
after taking it out from the court register. The original driving
license was seized by the IO.
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9. During investigation IO also recorded the
statement of one Sukhdev U/s 161 Cr.P.C. who
inter alia stated
that STA Naib Court Naresh had taken Rs.600/- and returned his
original driving license after taking it out from the court register.
The original driving license was seized by the IO.
10. During investigation IO recorded the statement of
one Gaurav U/s 161 Cr.P.C. who
inter alia stated that Naib Court
Mannu Rana had taken Rs.2,000/- and returned his original
driving license. The original driving license was seized by the
IO.
11. During investigation IO also recorded statements
of one Rakesh Popli, Shatrughan Kumar Singh, Sandeep whose
vehicles had been challaned and their driving licenses were
returned by the accused persons i.e. Naresh Kumar, Rajesh
Kumar and Mannu Rana after taking Rs.300/-, Rs.400/- and
Rs.600/- respectively. IO also recorded statements of other
witnesses U/s 161 Cr.P.C.
12. IO seized the documents containing admitted
handwriting of accused Mannu Rana and Raj Kumar. The same
were sent to FSL alongwith the seized exhibits.
13. Sanction to prosecute were obtained qua accused
Raj Kumar, Sunil Kumar, Rajesh Kumar and Mannu Rana.
Sanction to prosecute U/s 19 PC Act was declined qua accused
Naresh Kumar.
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14. Further investigation was conducted and
statements of ZO/Traffic Inspector were recorded U/s 161
Cr.P.C. and thereafter, on completion of investigation charge-
sheet was filed under Section 7/13 Prevention of Corruption Act
(hereinafter referred as PC Act) r/w section 120B IPC.
15. It is contended on behalf of accused Sunil, Peon
that the accused has been exonerated in the Departmental
Enquiry proceedings conducted against him. It is urged that in
light of the law as laid down in the judgment of Hon’ble
Supreme court in
Ashu Surender Nath Tiwari Vs Dy.
Superintendent of Police, Crl. Appeal no. 575 of 2020 in SLP
(Crl) No. 5422 of 2015, once the accused has been exonerated in
the Departmental Enquiry proceedings on merits, criminal
prosecution on the same set of facts and circumstances cannot be
allowed to continue.
16. The accused has also relied upon the decision of
the Hon’ble Delhi High Court in
Johnson Jacob Vs State, Writ
Petition Crl. No. 1279 of 2021 and Crl. M.A. 10847 of 2021 date
of decision 04.07.2022, wherein it was held in para 19 and 20 as
follows :
“19. The judgment of Ajay Tyagi (supra) is
distinguishable as there is no dispute with the proposition
laid down that exoneration of departmental proceedings
“ipso facto would not result in criminal prosecution”. The
reason being that departmental proceedings can be
quashed for a number of reasons, including certain
technicalities such as disqualification of inquiry officers,
procedural lapses, violation of principles of natural justice,
etc.
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20. However, I am of the view that when departmental
proceedings and the criminal proceedings are a mirror
image of each other and the accused has been exonerated
on merits in the departmental inquiry, and not due to
minor technicalities or irregularities, the criminal
proceedings, on the same set of facts and circumstances,
cannot be permitted to be continued as the standard of
proof in departmental proceedings is much lower than the
standard of proof in criminal proceedings. The same
principle has been laid down by the Hon’ble Supreme
Court in Ashoo Surendranath Tewari VS The Deputy
Superintendent of Police (supra).
17. It is stated by Ld. Counsel for accused Sunil that
the prosecution has essentially relied upon the testimony of PW
Subhash and PW Jai Ram Garg, Advocate to implicate the
accused in the present case. The said witnesses were also
examined in the departmental enquiry proceedings in which the
IO Insp. M.C. Meena was also examined. It is urged that there is
no further evidence sought to be led in the present case qua
accused Sunil and hence the present criminal proceedings cannot
continue in view of exoneration of accused Sunil in departmental
enquiry proceedings. It is accordingly stated that since accused
Sunil stands exonerated in the departmental enquiry proceedings
on merits and not due to technicalities or irregularities, the
accused Sunil is liable to be discharged in as much as even the
witnesses proposed to be examined in the present case qua
accused Sunil have already been examined in the DE proceedings
and no further evidence is sought to be led in the present case.
18. It is contended on behalf of accused Rajesh Kumar
and Mannu Rana that the witnesses sought to be examined by the
prosecution qua them have already been examined in DE
proceedings in which they were exonerated on merits and hence,
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the present criminal proceedings cannot continue against them in
view of the case law cited above.
19. On the other hand, it is contended by Ld. Chief PP
for State that no doubt PW Subhash and PW Jai Ram Garg as
well as Insp. M.C. Meena have been examined in the
departmental enquiry proceedings qua accused Sunil, however,
one accused namely Raj Kumar was also examined as a witness
in the departmental enquiry proceedings. It is stated that the said
accused could not have been examined as a witness as he had not
turned an approver. It is stated that since the findings in the
departmental enquiry also took note of the deposition of accused
Raj Kumar, therefore, the findings of the said departmental
enquiry cannot be taken into consideration by a criminal court.
20. It is further argued by Ld. Chief PP for State that
besides the witnesses examined in DE qua accused Mannu Rana
and Rajesh Kumar, the IO has also recorded the statements of Sh.
Shatrughan Kumar, Sh. Sandeep who have made allegations qua
accused Rajesh Kumar and Mannu Rana respectively, besides
other witnesses who have not been examined in the Departmental
Enquiry. It is accordingly urged by Ld. Chief PP for State that
the Departmental Enquiry proceedings are not a mirror image of
the criminal proceedings initiated against the accused.
21. I have heard counsels for the parties and perused
the record. Perusal of the record reveals that accused Sunil had
filed an application U/s 91 Cr.P.C. to take on record the report of
exoneration of departmental enquiry dated 21.02.2009 in support
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of his arguments on charge, before this court which was
dismissed by Ld. Predecessor vide order dated 08.03.2022.
Accused Sunil preferred a petition before the Hon’ble Delhi High
Court challenging the said order dated 08.03.2022. Vide order
dated 14.12.2022 of the Hon’ble High Court in Crl. M.C. 1346 of
2022 titled as Sunil Kumar Vs State, disposed off the petition
observing as follows :
“2. Learned counsel for the petitioner has drawn this Court
attention to the decisions of the Hon’ble Supreme Court in
State of NCT of Delhi Vs Ajay Kumar Tyagi in Crl.
Appeal no. 1334 of 2012 and Ashoo Surendranath Tewari
V. Deputy Superintendent of police Appeal no. 575/2020.
Even though, the Hon’ble Supreme Court in Ajay Kumar
Tyagi as held that an exoneration in department
proceedings ipso facto would not lead to exoneration and
acquittal in criminal case, the Hon’ble Supreme Court in
Ashoo Surendranath Tewari’s case has after culling out
the principles from previous decisions of the Hon’ble
Supreme Court as inter alia stated “in case of exoneration,
however, on merits where the allegation is found to be not
sustainable at all and the person is held innocent, criminal
prosecution on the same set of facts and circumstances
cannot be allowed to continue, the underline principle
being the higher standard of proof in criminal case.
3. In view of these decisions, it would be appropriate for
the learned Special Judge to take on record the report of
departmental inquiry in respect of qua the petitioner and
examine it during the arguments on charge which are now
listed for 23rd January, 2023, in accordance with law.
4. It is clarified that this order should not be taken as an
observation on merits of the matter.”
22. Thereafter, accused Rajesh Kumar and Mannu
Rana also approached the Hon’ble Delhi High Court vide Crl.
M.C. No.4516/2022 and Crl. M.C. No. 4732/2022 and the
Hon’ble Delhi High Court in the order dated 18.01.2023
observed as follows :
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“4. Since the Coordinate Bench of this Court has
already permitted the same departmental inquiry
report to be taken on record vide order dated
14.12.2022 in Crl. M.C. 1346/2022, the present
petitions are allowed.
5. The departmental inquiry report dated 27.01.2022
be taken on record.
6. However, it is made clear that the learned Spl.
Judge shall consider the departmental inquiry in
accordance with law. The observations made herein
shall not tantamount to be an expression on the
merits of the case.
7. In view of the above, the present petitions stand
disposed of.”
23. Accordingly, in view of the aforesaid orders dated
14.12.2022 and 18.01.2023, the record of the departmental
enquiries has been examined during arguments on charge qua
accused Sunil, Rajesh Kumar and Mannu Rana. Perusal of the
record further reveals that the charge-sheet has been filed against
the accused persons U/s 7/13 of Prevention of Corruption Act
read with Section 120B IPC. In this regard, it may be noted that
the departmental enquiry proceedings qua accused Sunil Kumar
was conducted by Additional Rent Controller, North-West,
Rohini, Delhi upon being marked by Ld. ACJ, Delhi. The
departmental enquiry qua accused Rajesh Kumar and Mannu
Rana was conducted jointly under the orders of DCP, Traffic
(HQ) and vide order dated 27.01.2022, DCP, 1st Battalion, DAP
exonerated accused Rajesh Kumar and Mannu Rana from the
charges in the DE initiated against them. It may further be noted
that the accused Raj Kumar has not taken the plea of exoneration
in the departmental enquiry, as taken by the remaining accused
persons namely Sunil Kumar, Rajesh Kumar and Mannu Rana.
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24. The finding of the departmental enquiry proceedings
conducted qua accused Rajesh Kumar and Mannu Rana reveal
that during the departmental enquiry proceedings, the statement
of accused Raj Kumar was also recorded wherein he stated that
accused Rajesh Kumar and Mannu Rana were not present when
the ACB officials arrived suddenly and further that he knew them
only due to court staff and had no other connection with them
regarding giving and taking of bribe. The Enquiry Officer,
Vigilance Branch, Delhi Police thus recorded the statement of
accused Raj Kumar and also took note of it while passing the
order on the departmental enquiry that the charges against Ct.
Rajesh Kumar and Ct. Mannu Rana were not proved. Accused
Raj Kumar has not turned an approver in the present case.
However, in the departmental enquiry proceedings, the statement
of accused Raj Kumar has also been taken note of. In these
circumstances, it cannot be stated that the departmental enquiry
proceedings conducted qua accused Rajesh Kumar and Mannu
Rana are mirror image of the present criminal proceedings in
which Raj Kumar is an accused and he is not arrayed as a
prosecution witness, not having turned an approver. Moreover
during investigation, the IO has also examined PW Shatrughan
Kumar and PW Sandeep who have made allegations qua accused
Rajesh Kumar and Mannu Rana respectively who were not
examined as witnesses in the departmental enquiry proceedings.
Accordingly, view of the judgment of the Hon’ble Delhi High
Court in
Johnson Jacob (Supra), in the present case, it cannot be
stated that the departmental proceedings and the criminal
proceedings are mirror image of each other and therefore,
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accused Rajesh Kumar and Mannu Rana cannot be discharged on
that ground.
25. Similarly, in the departmental enquiry conducted
qua accused Sunil, accused Raj Kumar was also examined as a
department witness and he gave a statement absolving accused
Sunil of the allegations against him. His statement was also taken
note of by the Enquiry Officer. As discussed herein above,
accused Raj Kumar has not turned an approver in the present
case and hence finding of the departmental enquiry based upon
his statement cannot be taken to be a mirror image of the present
criminal proceedings, where Raj Kumar has been arrayed as an
accused. In these circumstances, accused Sunil also cannot avail
the benefit of the judgment in the matter of
Johnson Jacob
(Supra) and seek discharge from the present case.
26. It is also pertinent to note that the departmental
enquiry proceedings of accused Sunil who was a peon and the
joint departmental enquiry proceedings of accused Rajesh Kumar
and Mannu Rana were conducted by their respective departments
separately. It is pertinent to note that charge-sheet has also been
filed U/s 120B IPC against the accused persons and the factum of
existence of conspiracy could not have been examined in the
departmental enquiry proceedings conducted separately against
the above named accused persons. In these circumstances also, it
cannot be stated that the departmental enquiry proceedings are a
mirror image of the criminal proceedings before this court.
Accordingly, the accused persons namely Sunil, Rajesh Kumar
and Mannu Rana cannot seek discharge on the ground that they
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have been exonerated in the departmental enquiry proceedings
and therefore, the present criminal proceedings cannot continue
against them.
27. It is argued on behalf of accused Raj Kumar that in
the present case prior to registration of FIR, the officials of ACB
received a complaint, conducted pre-raid proceedings, proceeded
to the spot alongwith the panch witness and the complainant,
conducted the raid and apprehended the accused, collected the
exhibits and sent the rukka to the PS ACB before the
investigation was handed over to IO Insp. M.C. Meena. It is
stated that the said proceedings do not have any sanction of law
in as much as before the registration of the FIR, the investigation
of the case and collection of evidence had already begun in
violation of the mandate of Cr.P.C. Moreover, no preliminary
enquiry was conducted to verify the veracity of the initial
complaint. The ld. Counsel for the accused has relied upon the
decision of the Hon’ble Supreme Court in the case of
Ashok
Tshering Bhutia vs. State of Sikkim, (2011) 4 Supreme Court
Cases 402, to contend that there must be preliminary enquiry
with respect to the allegations against the public servants, who is
charged with dishonesty that amounts to serious misdemeanour.
28. It may be noted that the Hon’ble Supreme Court in
case
Central Bureau of Investigation vs. Thommandru Hannah
Vijayalakshmi, Criminal Appeal no. 1045/2021, held as under :
“
34. Therefore, we hold that the preliminary inquiry
warranted in Lalita Kumari [Lalita Kumar vs. State of
U.P., (2014) 2 SCC 1 : (2014) 1 SCC (Cri) 524] is not
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required to be mandatorily conducted in all corruption
cases. It has been reiterated by this Court in multiple
instances that the type of preliminary inquiry tobe
conducted will depend on the facts and circumstances
of each case. There are no fixed parameters on which
such inquiry can be said to be conducted. Therefore,
any formal and informal collection of information
disclosing a cognizable offence to the satisfaction of the
person recording the FIR is sufficient.” (emphasis
supplied)
29. Accordingly, it cannot be stated that preliminary
inquiry is mandatorily required to be conducted in all corruption
cases. Additionally, the Hon’ble Supreme Court in
Vijaylakshmi
case (Supra) has also observed that the type of preliminary
inquiry to be conducted will depend upon facts and
circumstances of the case and there are no fixed parameters for
the same. Moreover, in the case of
Ashok Tshering Bhutia vs.
State of Sikkim (Supra), the Hon’ble Supreme Court has
observed that the principle that there must be some suitable
preliminary enquiry is not a law of universal application. In the
present case, the averments made in the complaint itself
disclosed commission of a cognizable offence. Additionally, the
trap proceedings have been used by the agencies for verification
of the allegations in the complaint and the trap proceedings
against accused Raj Kumar led to accused Raj Kumar being
caught red handed with bribe amount of Rs. 2000/- i.e. four
phenolphthalein powder smeared currency notes of Rs. 500/-
denomination, and hence there was substance in the allegations
made in the complaint. Therefore, it cannot be stated that the
proceedings stand vitiated for want of preliminary enquiry.
30. The Hon’ble Supreme Court in case
Cherian Lukose
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vs State of Kerala, AIR 1968 KER 60, decided on 23rd December
1966 held as under:
“5. Demand by the accused for the bribe is an essential
ingredient of the offence and that has an important part
to play in ascertaining whether the trap laid is
legitimate or illegitimate.
"There are two kinds of traps, "a legitimate" trap where
the offence has already been born and is in its course,
and an "ilgitimate trap" where the offence has not yet
been born and a temptation is offered to see whether an
offence would be committed, succumbing to it, or not.
Thus where the bribe has already been demanded from
a man, and the man goes out offering to bring the
money, but goes to the police and the Magistrate, and
brings them to witness the payment, it will be a
"legitimate trap" wholly laudable and admirable, and
adopted in every civilized country without the least
criticism by any honest man. But where a man has not
demanded a bribe and is only suspected to be in the
habit of taking bribes, and he is tempted with a bribe,
just to see whether he would accept it or not and to trap
him, if he accepts it, it will be an illegitimate trap and,
unless authorised by an Act of Parliament it will be an
offence on the part of the persons taking part in the
trap who will all be "accomplices" whose evidence will
have to be corroborated by untainted evidence to a
smaller or larger extent as the case may be before a
conviction can be had under a rule of court which has
ripened into a rule of law" (Vide the Law relating to
Bribery and Corruption by Soonavala, 1964 Edn. page
229). (Emphasis supplied)
31. The Honb’ble Delhi High Court also in the
judgment of
Court on its on motion vs. State, Criminal Writ
Petition no. 796/2007, decided on 21.08.2008 noted that there are
two kinds of traps, a legitimate trap and an illegitimate trap.
Hence, it cannot be inferred that all the traps are illegitimate as
contended by ld. Counsel for accused Raj Kumar. Moreover, in
the present case the complainant has specifically made allegations
of demand by accused Raj Kumar before the trap was laid and
hence, the trap laid cannot be stated to be illegitimate.
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32. It is a settled legal position that prosecution is
required to prove its case beyond reasonable doubt. However, at
the stage of framing of charge, the Court has only to see whether
prima facie case is made out against the accused. In this regard, it
is held in Amit Kapoor Vs. Ramesh Chander, 2012 (9) SCC, 460
as under:
“19. At the initial stage of framing of a charge, the
court is concerned not with proof but with a strong
suspicion that the accused has committed an offence,
which, if put to trial, could prove him guilty. All that
the court has to see is that the material on record and
the facts would be compatible with the innocence of
the accused or not. The final test of guilt is not to be
applied at that stage.”
33. Thus, at the stage of charge, the court is neither
required to see the probative value of the evidence nor the
sufficiency of material is to be gone into. Whether the trial would
eventually result into conviction of the accused or not is also not
material.
34. In view of the aforesaid discussion and after
considering the rival submissions as well as going through
charge-sheet and other material placed on record, I am of the
considered opinion that prima facie a case for the offences under
section 7/13(1)(d) P.C.Act read with Section 120B IPC is made
out against the accused persons namely Raj Kumar, Sunil Kumar,
Rajesh Kumar and Mannu Rana. Accordingly, charge be framed
against accused persons.
Announced in the open court ( Deepali Sharma )
on 14th November, 2024 Special Judge, PC Act (ACB-01)
RACC, New Delhi.
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